More And More People Speak Up Against SOPA

from the speak-up dept

With the hearings this morning (more on that later), there were also more statements publicly made against SOPA this morning. Two key ones are, unfortunately, behind Politico's paywall, so I can't link or quote too much. The first, by former Homeland Security Assistant Secretary and former NSA General Counsel, Stewart Baker, was raised a few times during the hearings. Baker focused on the problems of SOPA and PROTECT IP and their impact on online security. He notes that the DNS blocking portions of both bills "run directly counter" to the government's cybersecurity efforts:

Because “block and redirect” is exactly what crooks are doing today to bank customers. If the bills become law, the security system won’t be able to tell the difference between sites that have been blocked by law and those that have been sabotaged by hackers. Indeed, it isn’t hard to imagine crooks redirecting users to sites that say, “You were redirected here because the site you asked for has violated copyright,” while at the same time planting malware on the user’s computer.

There's much more in the article as well, noting that these laws won't actually help Hollywood and will "leave the rest of us hurting and poorer for years." The really tragic part of the hearing is that when all of the panelists were asked about Baker's statement, every single one of them admitted that they didn't understand the technology enough to really comment. The best that the MPAA's Michael O'Leary could blurt out was that he "didn't agree."

The second interesting piece at Politico comes from famed Constitutional scholar Laurence Tribe, who more or less acts as a counterweight to Floyd Abram's letter. He basically highlights all of the problems we've discussed over the past few weeks: vague definitions, broadly targeted, will impact perfectly legitimate sites. And, he notes clearly: "It would violate the First Amendment."

A key provision of the bill would give copyright owners the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice that the site is “dedicated to the theft of U.S. property” — even if no court has actually found any infringement.

The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. Courts have always treated such cutoffs of revenue from speech as a suppression of that speech, and the silencing of expression in the absence of judicial review is a classic prior restraint forbidden by the First Amendment.

Just as we have said in the past. It seems that more and more lawyers are making this point. So far, the pro-SOPA side has Floyd Abrams. He's respected, sure, but so is Tribe and so are many of the other lawyers who have questions SOPA's impact on the First Amendment.

Lots of internet companies have come out against the bill as well. Reddit and Tumblr both joined with American Censorship Day, blocking out parts of their site. Tumblr went so far as to blackout their entire dashboard. Along with them Kickstarter and FourSquare both spoke out against the bills as well. These are all platforms that content creators today rely on to create, connect, promote, distribute and monetize their works. In other words, these are the platforms of the future -- the platforms that could be crippled with legal and regulatory compliance under these bills. Burdening them doesn't help content creators. It may help the big record labels and the big studios -- the ones who don't want musicians and filmmakers "going direct" via these platforms... but it doesn't help actual content creators or the public.

We've been seeing a disturbing trend recently. Increasingly, we're receiving purported DMCA requests that ask us to identify website hosts that are actually from attackers abusing the legal code. If we reveal the requested information, attacks are launched directly at those hosts, bypassing CloudFlare's protections and knocking legitimate sites offline. Initially, these requests were relatively easy to spot. When we recognized the new attack method, we changed our policies and trained our customer support team to more carefully screen DMCA requests. Increasingly, however, the requests are becoming more sophisticated and difficult to detect.

Imagine the challenge for someone on CloudFlare's support team. If someone writes to us alleging that they are a photographer who took a picture that appears on a website, or a designer who drew a logo, or an author who wrote some text, how can that claim be verified? I'm an attorney and member of the bar. I teach a course on intellectual property and technology law at the John Marshall Law School. I serve on the Board of the Center for Information Technology and Privacy Law. I've reviewed many of these requests and, even with my training in the subject, I have no idea how to effectively and efficiently tell the difference between valid and invalid complaints.

In an Internet without bad guys, the consequences of revealing a host's information is relatively minimal. Unfortunately, the Internet is full of bad guys. There has been a steady rise in attacks, increasingly affecting legitimate small businesses and ecommerce sites. These attacks have been part of why more than 100,000 websites have sought shelter behind CloudFlare in just the last 12 months. We offer great technical protections to shield sites from attack, but I'm concerned some of our efforts could be undermined by new laws like SOPA.

Yes, read that again, because it's downright scary.

Mozilla, the makers of Firefox, also joined in, with the following on their website:

Re:

Same here, as a non-American, I can't help but feel helpless as I see a once great nation throw itself into the abyss of censorship. Let's hope sensible heads will prevail, and that this SOPA thing will become just another misspelling of soap.

But I fear, that if SOPA doesn't come through, that the Media Association For Incinerating America (MAFIA or NAMBLA) will come up with another harebrained stupid idea, that's even worse than this one.

It won't end until finally the labels have lost all their cash, the movie studios can't pay their stars and the book publishers have lost all their authors. And even then they are still dangerous.
They are like that scorpion that took a ride on a turtle to cross a stream, only to sting the turtle midstream. They are destroying themselves, and they don't even realize they are doing it.

I did..this is the response I got.....

Thank you for contacting me regarding S. 968, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT IP) Act of 2011. It is good to hear from you.

The PROTECT IP Act was introduced by Senator Patrick Leahy (D-VT) on May 12, 2011. This bill allows the U.S. attorney general to seek court orders requiring U.S.-based search engines and internet service providers to stop providing links to infringing sites, in addition to requiring payment processors and online advertising networks to refrain from conducting business with such sites.

While I believe individuals and entities who possess copyrights and patents deserve to fully benefit from the legal protection afforded them, any legislation of this magnitude must be carefully considered. The PROTECT IP Act was reported by voice vote from the Senate Judiciary Committee and is currently pending before the full Senate for passage. Should this legislation come before the House of Representatives, I assure you I will keep your thoughts in mind.

Again, thank you for contacting me regarding S.968, the PROTECT IP Act of 2011. Please continue to keep me informed of the issues that are important to you, and be sure to visit my website, www.womack.house.gov, for more information.

First, don't use Microsoft Windows.

"while at the same time planting malware on the user’s computer." -- But the NSA has backdoors into Windows! So it's at the same time promoting a deliberately compromised platform. My bet is that part of Microsoft escaping further anti-trust action included putting in backdoors.

@ Tribe: Is there NOT a judicial review process? Sure, getting payments stopped immediately and the site taken down COULD be an injury IF falsified, but that can be redressed in subsequent action. Problem is that NOTHING is being done currently about obvious infringement. Rapidshare and others simply shut their eyes and "share" out petabytes a day.

>>> "It may help the big record labels and the big studios -- the ones who don't want musicians and filmmakers "going direct" via these platforms... but it doesn't help actual content creators or the public." -- So your position is that "big record labels and the big studios" aren't "actual content creators"?

@ CloudFlare: What about those whose whole MOVIES are definitely posted online? Just let it go? Phooey. You may just be another company that'll become redundant after SOPA.

Re: First, don't use Microsoft Windows.

Hey look, it's Out_of_touch_with_reality. Hi, how are you doing? I see you are still at it spouting weird nonsensical responses without any basis on reality. Well done, your masters at the RIAA must be very proud of you.

You simply don't get it that the world has moved on from the past, do you? It's adapt or die in this world. The internet has made the gatekeepers irrelevant, and with SOPA they are trying to win back that relevancy. It's futile, because I don't think a single US citizen is going to follow that law whatsoever.

All it will accomplish is that the pirated stuff will go deeper underground, harder to reach by law, but still easier to get than to get the legal alternative (if that's even available).

Re: Re: Re: Re: First, don't use Microsoft Windows.

Re: First, don't use Microsoft Windows.

The problem starts and ends with one factor... When the government decides to slander you, articles come out that issue bad PR. Sadly, after they are finished, there is no announcement that the investigation is over or you were cleared of charges. Thus the bad PR remains. Companies like YouTube and MegaVideo will be down entirely because individuals will live in fear of viewing pirated materials. The bottom line is, if their profit margin is being cut into, then good to some extent. I have lots of friends in bands, and I totally think you should support artists in film and music that you appreciate.

Either way, the amount of exposure that comes out of the net and even infringement is beneficial in many ways. Companies are hurting because of a rough economy. People are downloading more because of a rough economy. It leads to rash decisions being made that make absolutely no sense. They are cutting off their nose to spite their face.

Re: First, don't use Microsoft Windows.

"Sure, getting payments stopped immediately and the site taken down COULD be an injury IF falsified, but that can be redressed in subsequent action."

Idiot. The words "private right to action" apparently haven't sunk into your brain yet, despite the thousands of times we here at Techdirt have mentioned it.
Viacom is in the middle of a billion dollar lawsuit against Youtube. Under SOPA, all it would then have to do is fire off a simple form letter, and Youtube would be cut off from payment processors. Sure, Youtube has the cash on hand to pay for lawyers and counter-sue, but in the meantime, its cut off from income.
As for those who don't have a huge pile of cash on hand? They can either shut down or spend their limited resources counter-suing. Even if they win, they'll have burned through their capital defending themselves in court. They'll have nothing on which to operate. While defending themselves in court, they'll be barred from making an income.

As for "NOTHING is being done about infringement", shut the hell up. Youtube has ContentID, and it and the cyberlockers take down links all the time. They're over-aggressive when it comes to that, in that many innocent people have their links taken down as well. Didn't you hear about Warner Bros. using an automated tool from Hotfile to take down stuff it simply didn't like?

A key provision of the bill would give copyright owners the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice that the site is “dedicated to the theft of U.S. property” — even if no court has actually found any infringement.

The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. Courts have always treated such cutoffs of revenue from speech as a suppression of that speech, and the silencing of expression in the absence of judicial review is a classic prior restraint forbidden by the First Amendment.

Clear to everyone that absent a court order (voluntary) cut off is not a violation. I think as long as notice is attempted that a court order meets the requirements of Federal Rules of Civil Procedure.

Re:

It's hardly voluntary. If the payment processor doesn't cut off the accused, they become liable for the possible infringement as if they were hosting the content themselves. The burden of proof is on the accused that they were not infringing. There is no provision to punish false accusations or fraudulent takedowns and no requirement to restore service if the accused is vindicated.

When will politicians realize they are just tools for big media companies? Don't they realize they will not be re-elected next term if they pass this bill? It's sad that the politicians don't realize the big media companies don't care if they are re-elected even if SOPA is passed. Good politicians will remember who voted for them in the first place and do the job they were elected to do.

Re:

I wrote my Senator about SOPA and this is what he said:

Sen. Schumer (D NY) wrote back to me on November 2:

Dear Mr. xxxxxxxx

Thank you for your contacting me in opposition to S.968, the PROTECT IP Act. Like you, I believe that consumers should have access to a vibrant and innovative online community to discuss their ideas and opinions. At the same time, we must not let the internet become a haven for intellectual property thieves.

The threat to intellectual property owners over the internet is clear. Every year, the US Chamber of Commerce estimates that copyright theft costs our nation about $58 billion in lost output, 373,375 in lost jobs, and $16 billion in lost employee earnings. These numbers present an unacceptable burden to US businesses. In addition, companies may be less likely to innovate because their products may be stolen by intellectual property pirates, creating a drag on the US economy.

The PROTECT IP Act addresses the problem of intellectual property theft online, but it also contains important due process protections to ensure that legal activity over the internet is not disrupted. As you may know, the PROTECT IP Act would allow the Department of Justice to file a claim against a website that 1) has no significant purpose other than engaging in or facilitating copyright infringement, circumventing technology controlling access to copyrighted works, or selling or promoting counterfeit goods or services; or (2) is designed, operated, or marketed and used to engage in such activities. A judge would have to find that a website is intentionally violating intellectual property rights of an American entity before he could issue an order against that site. I believe PROTECT IP Act would provide law enforcement and intellectual property holders additional tools to protect American intellectual property from websites while still ensuring the constitutionally protected rights of free speech and due process. The PROTECT IP Act currently is awaiting action on the floor of the Senate, and I will continue to monitor this bill as it moves through the Senate.

Thank you for contacting me on this important issue. Please do not hesitate to contact me in the future if I can ever be of assistance to you on this, or any other matter.

Sincerely,

Charles E. Schumer
United States Senator

Interestingly, this is the exact same boilerplate I got when I wrote about PROTECT IP at the end of August. It appears that he is so bought and paid for that he is not even bothering to update his responses.

My other senator (Kirsten E. Gillibrand D, NY) said thanks for the contact but did not even send a boilerplate response. My Representative (Hinchey, NY 22) has not responded in any way to my contact, although as I recall he has had a pretty decent record on 'net affairs.

Re: Re: I wrote my Senator about SOPA and this is what he said:

Well they also don't give a damn about stopping piracy, because honestly that bill has zero effect on anyone making a copy of anything.

It is already illegal to make copies, it is already illegal to distribute them, there are severe consequences for it and despite all of that people just ignore the law, now what makes you believe that people will stop doing what they are doing if Facebook closes, Twitter closes, Google closes, Hotmail closes?

Can you explain how that bill will stop anyone from copying anything or sharing it?

I say that if politicians don't give a flying fuck about harming business that is fine, people also don't give a flying fuck about imaginary rights that no one can fallow, not even you.

Re: Re: I wrote my Senator about SOPA and this is what he said:

Oh btw they also demonstrated their total ignorance of how judges will work on those things, since I believe he thinks the judge will go through a list with thousands of entries and make sure that everyone of them is in fact illegal without having to do so by the law.

Re: I wrote my Senator about SOPA and this is what he said:

Re: I wrote my Senator about SOPA and this is what he said:

I am an independent filmmaker and my film has been pirated far and wide. This scale of piracy is totally undermining my ability to make another film.

Right now with this scale of piracy, it is basically "open the store and take what you want", everyone makes money off our work but us....Unless you are willing to propose other solutions all of you talk about censorship rings totally hollow.

Content creators are powerless to stop this wholesale theft. Hard to compete with free. DMCA is comletely inadequate, it is like wack a mole and you'd pretty much have to spend your entire day writing them just so fifty more links can be reposted a minute later. Even worse is that the pirates, cyberlockers, the credit card companies, and advertising providers (a la google's ad sense), are all making lots of money off our stolen work. This isn't just about big media companies. Piracy has become big business, so think about who you are really supporting.

And if you do not like this bill maybe it is about time all you people flapping on about free speech propose some real solutions to support content creators. This scale of piracy is totally undermining the creative potential of a generation of artists, filmmakers, writers and musicians.

I hold Mr. Abrams in high regard. The same can be said of Mr. Tribe. If Mr. Tribe presented an opinion along the lines of Mr. Abrams I would certainly take note and give it serious consideration.

Unfortunately, the same cannot be said of the submission by the "100 Law Professors", many of whose work I have studied over the years, and none of whom I generally associate with significant expertise in constitutional law. Had they taken the time to engage and traverse Mr. Abrams legal opinion, I would have given their work product fair consideration. Unfortunately, and for reasons unknown, they chose a different path, and it is this failing that leaves those of us who study the law to lend it little credence. Perhaps some time in the future they will cure this glaring defect, but until such time their argument in my opinion carries very little, if any, persuasive force.

Re:

Care to explain why the 100 Law Professors are wrong, other than the fact you say they don't have significant expertise in constitutional law?
When Mike said he didn't like Abrams, he said it was because Abrams was being paid by the MPAA to make his statement. If true, that is a good reason to hold Abrams' opinion suspect. What about the 100 Law Professors?

Re: Re:

Re:

Unfortunately, the same cannot be said of the submission by the "100 Law Professors", many of whose work I have studied over the years, and none of whom I generally associate with significant expertise in constitutional law.

Look, just because you don't like what they said, doesn't mean that you get to brush off their expertise. Many of those signed onto the letter are extremely well respected in their fields.

And, I might ask: who the hell are you anyway, if you're going to besmirch the reputations of those who signed on to the letter?

Re: Re:

My comments have absolutely nothing to do with what they said. I could care less if they agree or disagree because it is a fact of daily life that reasonable people can have decidedly different views on a subject.

My objection stems from the fact that the letter they presented is in no sense a legal opinion backed up by citations to relevant precedent. If you are going to say something is illegal, then it is incumbent upon you to explain why it is so, and especially if your goal is to provide a persuasive argument.

sopa

bottom line is it won't stop piracy {it didn't stop it in China}. It will only create even more illegal activity.

The RIAA needs to quit calling on the rest of the world to pay its social security, and it needs to quit pretending that music and art will die if it does. Music created the giant record companies not the other way around. Music thrived before this oppressive media empire developed from it, and it will thrive long after that empire has fallen.

Empires don't go down without a fight, though. Their time has come. They can either adapt or go extinct. But they do not have the right to rule over us as they have for decades.

SOPA isn't about battling piracy

that's only an added bonus (or at least they wish it to be).

No, SOPA is all about control, it's about the gatekeepers trying to gain control back over the distribution methods on the web. They want to be able to tell people what to watch. They hate the cat videos on youtube, and the indie artists on Bandcamp etc and the self-publishing (Lulu for instance), because it removes their gatekeeping control.

They hate it that people can now go around them and still reach an audience. They used to be able to say what the public could watch/read/listen to, and suddenly with the birth of the Internet they couldn't any more.

It isn't about piracy, it never was. It is just used as a crutch, to make Congress think that Big Media was hurting for cash, and that the campaign funds from that side could dry up.

It scares me to think of our future is SOPA passes

Think of the young generations and the future ones, I'm going to to say this as any average American might. SOPA is complicated and it'll hurt the PEOPLE because the government doesn't seem to be losing anything. SOPA in my mind, because I can hardly follow the other comments and the article, is basically the equivalent to a autocrat and a tyrant. America, known to everyone as the a world power, is slowling crumbling and SOPA will basically finish us off in the end. Americans know that this bill will not pass! http://www.youtube.com/watch?v=V4UfAL9f74I

Re: It scares me to think of our future is SOPA passes

If you think about it, the government will also hurt as a result of the bill. The truth is, if this bill passes, no one will gain and everyone will lose. this is because the people will suffer for jobs, causing massive problems for America as a whole including its government, GDP will drop, and the companies backing the bill will most probably be boycotted by many people, and less people will have the money to actually go out and buy thier products. Thats my opinion anyway